United States v. Lopez-Ortiz
88 F. App'x 773
February 16, 2004 · Docket 03-20528
Headnotes
Generated summaries- Headnote 1
Lopez‑Ortiz argued that his prosecution should be dismissed under United States v. Mendoza‑Lopez and 8 U.S.C. § 1326(d) because the immigration judge misapplied statutes, but he admitted those arguments are barred by Fifth Circuit precedent and the law‑of‑the‑case doctrine. The district court judgment was affirmed.
- Headnote 2
The Government moved for summary affirmance and asked that an appellee’s brief not be required. The court granted the motion, affirmed the district court judgment, and proceeded without a brief because Lopez‑Ortiz’s contentions were foreclosed by existing precedent.
- Headnote 3
The court noted that, pursuant to Fifth Circuit Rule 47.5, this opinion is not published and is not precedent except under the narrow circumstances outlined in Rule 47.5.4.
- Headnote 4
Lopez‑Ortiz conceded that his arguments were foreclosed not only by Fifth Circuit precedent but also by the law‑of‑the‑case doctrine, which prevents the same parties from raising issues already decided in prior appellate rulings.
- Headnote 5
Lopez‑Ortiz argued that his indictment should be dismissed under § 1326(d) because the immigration judge allegedly misapplied statutory amendments and misclassified his felony.
- Headnote 6
The appellant conceded that his arguments were foreclosed by Fifth Circuit precedent and the law‑of‑the‑case doctrine, raising them only to preserve issues for further review.
- Headnote 7
The court relied on Rule 47.5 to determine that the opinion should not be published and that summary affirmance was proper because the appellant raised only foreclosed arguments.
- Headnote 8
The Government moved for summary affirmance and asked that no brief be required of the appellee; the court granted that request because the issues were already decided.
- Headnote 9
Lopez‑Ortiz sought dismissal of his indictment, but the court held his contentions were foreclosed and therefore the conviction stands.
- Headnote 10
The opinion notes that the motion for summary affirmance was granted and the judgment affirmed, reflecting the lack of any genuine issue of material fact.
Opinion
Joel Lopez-Ortiz was found guilty following a stipulated bench trial of being found unlawfully present in the United States after deportation, in violation of 8 U.S.C. § 1326(a). He argues that the indictment should be dismissed under United States v. Mendoza-Lopez, 481 U.S. 828, 107 S.Ct. 2148, 95 L.Ed.2d 772 (1987), and 8 U.S.C. § 1326(d) because the immigration judge who ordered him deported ap plied the wrong amendments to the immigration code and erroneously treated his felony conviction as an “aggravated felony.” He concedes that his arguments are foreclosed by Fifth Circuit precedent as well as the law of the case doctrine, and he raises them solely to preserve the issues for further review.
The Government has moved for a summary affirmance in lieu of filing an appellee’s brief. In its motion, the Government asks that an appellee’s brief not be required. The motion is GRANTED. The judgment of the district court is AFFIRMED.
AFFIRMED; MOTION GRANTED.
Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.